On May 12, 2022, the Equal Employment Opportunity Commission (“EEOC”) issued guidance addressing the application of the Americans with Disabilities Act (“ADA”) to employers utilizing software, algorithms, and artificial intelligence in hiring and employment decisions.  Produced in connection with the EEOC’s launch of its Initiative on Artificial Intelligence and Algorithmic Fairness in October 2021, the EEOC’s latest guidance reflects its goal of ensuring that employers utilizing technology in hiring and employment decisions are complying with federal civil rights laws.  Notably, the guidance was issued a few days after the EEOC filed a complaint against a software company alleging age discrimination, potentially signaling similar actions related to the use of artificial intelligence in the employment context.  Below are some key takeaways on the new guidance.

Scope and Definitions

The guidance implicates a broad range of technologies commonly utilized by employers including software, algorithms, and artificial intelligence:

Employers may use tools that include a combination of these terms.  For example, an employer may utilize resume screening software that incorporates an algorithm created by human design or an algorithm that is supplemented by AI analysis of data.

Ways in Which Algorithmic Decision-Making Tools may Violate the ADA

The guidance discusses the three most common ways that an employer’s use of algorithmic decision-making tools could violate the ADA.  This includes the following:

Employer Responsibility for Vendor Technology

Importantly, the EEOC guidance states that employers are generally responsible for the discriminatory effects of software utilized in the hiring process even when the software is utilized by third-party on behalf of the employer.

Best Practices for Employers

The EEOC offered so-called “Promising Practices” for employers seeking to ensure compliance with the ADA.  These recommendations provide helpful suggestions about ways in which employers may protect themselves against claims of disability discrimination.  Those recommendations include to:

Key Takeaways

May marked the first new developments out of the EEOC relating to AI since the launch of the Initiative on Artificial Intelligence and Algorithmic Fairness.  This new guidance provides much needed insight on how the EEOC will enforce the ADA with respect to AI going forward.  Employers should utilize the provided “Promising Practices” to ensure compliance, and avoid possible liability.  

Because this issue is still developing, we will continue monitoring developments in this area and provide updates as new information becomes available.

*Wolfram Ott is a summer associate in the Labor and Employment group and assisted with the drafting of this article.

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